TOWARDS
A NEW GLOBAL JUSTICE COMPACT
Alejandro
Bendaña
Centro
de Estudios Internacionales
Managua,
Nicaragua
November 13, 2012
John Maynard Keynes once
famously said—“When the facts change, I change my mind”. “What do you do?”
The facts are changing
demanding that we not simply change our mind, but review, reaffirm or change
our paradigms altogether. There is no
alternative—an affirmation made from the perspective of global peacebuilding,
which at this point in global history, needs to review the shape and future of
the forest, lest the trees and branches of particular and often recurring
episodes of violence and situations demanding justice, important as they are,
must not distract us from the larger
dilemma that faces us all demanding even more work
It may be too late to stop
the offloading of the proverbial straw that broke the camel’s back—why not
another camel and a new way of living with the camel instead of merely not
killing it? A new or renewed Global
Justice Compact with three fundamental components.
FIRST—A NEW ENVIRONMENTAL COMPACT
The first fact, which by this time should not be
‘new’ to anyone is the dealing with the consequences of the environmental
equation. No longer in the making, but
made and imploding before our very eyes. The implosion is as much environmental as
political, that is the political will and capacity to deal with the
consequences of present ‘development’ models spelling a crisis for this
generation and an even greater one for the next
If further evidence were
still to be required, it was provided by Artic experts who in September, 2012
concluded that the collapse of Northern sea ice is now underway and will be
final within four years.
That same month, the Climate
Vulnerable Forum, a grouping of some 20 countries, reminded us that today five
million deaths occur each year from air pollution, hunger and disease as a
result of climate change and carbon-intensive economies, and that toll would
likely rise to six million a year by 2030 if current patterns of fossil fuel
use continue. As usual, more than 90
percent of the estimated deaths would occur in developing countries.
And also as usual some of
the chief culprits are in denial. Typified
perhaps by a columnist for the ultra-capitalist Forbes magazine complaining that the problem with the said report is that it only deals with costs
and not trade-offs! In similar form but
this time employing religion, new head of a US Congressional subcommittee on
the environment explained that global warming cannot be a problem because God
promised Noah that there will not be another flood.
If our paradigm has room
for such deniers then definitely it is time to move on and change the rules of
engagement. There is little time to wast
and admonishment theirs or ours does not seem to be getting us anywhere. A paradigm shift imperative is imperative—of
thought and of power, because the first without the other is gets us nowhere,
while power without thought–sort of where we are now-- is positively dangerous. The technical must meet the political on
political grounds, and not the other way around.
Yet for all our insistence
on the ‘new’, we must pick up the trail to the future looking back at the
wisdom of the many indigenous peoples today who insist that the earth is not
something we inherit from our ancestors, but something that we borrow from our
children and their children.
A paradigm shift is being
shaped that that breaks with both rule of capital and classical Marxism both of
which considered consumption and production as progress, to a paradigm that actually
places restraint on consumption and production, on all, but in particularly of
the rich, for the rich and by the rich.
If that is the thought,
then where is the power? Here we should encourage looking at the work
of a spreading movement working to recognize what is variously termed Nature/Mother
Earth/Environment, as a legal subject of Rights and Laws.
The Rights of Mother Earth movements tell us that
ALL of life has inherent and inalienable rights; that human development can
only be sustainable if the social demands and needs of humanity are balanced
against the need to maintain the integrity, health and functioning of natural
systems. In other words what is still
tolerated today, must be made legally a crime, also today!
Legal systems define parameters of acceptable
behaviors and actions, how we humans relate to each other and to the world
around us. In most countries, legal systems treat nature as property to be
bought, sold and consumed. Under such laws, human concerns invariably prevail
over Nature and the carrying capacity of natural ecosystems instead of being
weighed against the needs of ecosystems and other beings in order to strike an
appropriate balance.
One of the reasons why contemporary legal and
governance systems have failed is because they t have been designed to
facilitate and legitimate the unsustainable exploitation of Nature.
An essential step in achieving this natural balance
is to fill a governance gap, by creating governance systems that see and treat
Nature as a fundamental, rights bearing entity and not as mere property to be
exploited at will. Breaking out of the human-centered limitations of our
current legal systems by recognizing, respecting and enforcing Rights of Nature
is one of the most transformative and highly leveraged actions that humanity
can take to create a sustainable future for all.
This
is no pipe dream—as there are now functional national legal systems which
incorporate the Rights of Nature. The
new constitutions in Ecuador and Bolivia explicitly recognized the status of natural
communities. Ecosystems are no longer
from regarded as property under the law but as rights-bearing entities. These
constitutional provisions and laws recognize that natural communities and
ecosystems—no less than human beings-- possess an inalienable, fundamental
right to exist, be protected and flourish.
Residents of communities where Rights of Nature
have been adopted possess the legal authority to enforce those rights on behalf
of those ecosystems. In addition, these laws require the governmental apparatus
to remedy violations of those ecosystem rights.
Rights of Nature laws eliminate the authority of a
property owner to interfere with the functioning of ecosystems and natural
communities that exist and depend upon that property for their existence and
flourishing. They do not stop development; rather they stop development and use
of property that interferes with the existence and vitality of those
ecosystems. Rights of Nature lays the
foundation for truly sustainable and viable development to occur.
Definitely paradigmatic stuff. Not only in terms of law, but also of social
and political sciences, no longer only
simply to the social compact between the individual person and the State
taught in political theory, but a new Socio-Environmental compact that is not a
dichotomy but triangular: the individual, the State, and Nature. Here both societies and the states (including
corporations) are called upon, as a matter of law, not of simple persuasion, to
legally recognized the rights of Nature.
Where the 20th century binding Universal Declaration on Human
Rights is insolubly linked and interdependent with an equal binding 21st
Century Universal Declaration on the Rights of Nature/Mother Earth that also
makes its way into binding law.
What is our Action Point? Provide support to
Bolivia and other countries that are leading this effort in the UN. Bolivia has been lambasted by the US and
Britain in the UN climate talks for demanding steep carbon emission cuts. The threat of a good example—the threat posed
by that country’s legislation establishing 11 new rights for nature. They
include: the right to life and to exist; the right to continue vital cycles and
processes free from human alteration; the right to pure water and clean air;
the right to balance; the right not to be polluted; and the right to not have
cellular structure modified or genetically altered. And in the works : the right of nature “not
be affected by mega-infrastructure and development projects that affect the
balance of ecosystems and the local inhabitant communities".
SECOND–REIGNING IN FINANCIAL AND ECONOMIC CORPORATE
POWER
Since the French Revolution, western political
thought has basically held that States made entities could be governed by men
(and more recently by women) in order to reflect the demands and
responsibilities of citizens. An obscure
UN document now making the rounds in New York is about to throw out that
principle by turning it on its head and put forth a new proposition best
enunciated publicly by the US Presidential Republican Party nominee who said
“corporations are people and have rights too” or a Supreme Court that stated
corporations ‘right to expression’ could not be limited, including presumably
the right to fund the defense of corporate interests including political
campaigns.
It what amounts to global privatization, including
the privatization of the State, the same financial capital conglomerates that
brought you the worst economic breakdown in half a century are about to be
rewarded not simply by immoral massive dividends but by the release from
accountability to any global authority. This rather massive gap in global
governance is well on its way to being closed by it becoming the norm instead
of gap. Where, in the name of the free
market, corporate interests shape and frame global economic governance.
Once upon a time it countries of the South and
their allies acted through the United Nations to push the development of global
regulatory frameworks over international business. There was even a time when important UN
agencies refused to accept donations of computers from its global manufacturers
lest its independence be seen as compromised.
But times have changed! One of
the supreme ironies of our time is of bankers in New York or London or Zurich
facing the possibility of indictment for actions leading to the 2008 financial
collapse takes place at the same time the assembly of governments gathered in
the UNGA may just with the bang of a
hammer approve the emasculation of the Universal Declaration of Human Rights
excepting capital from that universality.
Is further evidence required to demonstrate how the
global capitalist crisis is having a detrimental impact on human beings and
therefore their rights? Is it not
obvious that individual States have failed to reign in the corporate
conglomerates notwithstanding the outcry of ruined and unemployed citizens? Of course, it is be too easy simply to blame
a UN as if it were not the expression of its 200plus states. Let’s rather blame governments including our
all of our own, and us as national citizens. But as global citizens, we along
with so many governments are just as responsible for the failure to enact
democratic global governance and reign in the markets. Far from a regulatory environment we have a
permissive environment for wrongful acts and practices of all sorts, without
adequate sanctioning or reparation.
Those gaps are not abstract because they translate into miserable
conditions of livelihood, disease and death.
As a number of human rights organizations have
pointed out these allegedly ‘private’ actors have very ‘public’ legal
obligations.
But that argument appears to be losing if we review the final considerations
presented to the Human Rights Council and now up for review in the General Assembly.
Some years ago the United Nations Human Rights
Council asked the UN Secretary-General to appoint a Special Representative to
investigate a number of important issues relating to business and human rights.
The mandate of the SRSG arose from the failure by the Council a year earlier to
adopt a document known as the UN Norms on the Responsibilities of Transnational
Corporations and other Business Enterprises with Regard to Human Rights.3
That Ruggie report, named after the Special
Representative John Ruggie, was issued
and is now out being applauded by entities such as the International Chamber of
Commerce while greatly disappointing civil society groups working on human
rights, the environment but also peacebuilding advocates, particularly those
who also want to limit put the massive expansion of private international
security companies and equally unaccountable privatization of war.
For a thorough and thoughtful assessment of the
Ruggie report, one can turn to the study
by Professor David Bilchitz of the University of Johannesburg. Here he advances a strong normative argument
for the claim that corporate obligations should not only involve ‘negative’
obligations to avoid harm but also include a ‘duty to fulfill’: obligations to
contribute actively to the realisation of fundamental rights. This is so clear in in the case of
pharmaceutical corporations as the TAC campaign so strongly argued on behalf of
HIV affected people, but –yes—also mining corporations. What Professor Bilchitz and others underscore
is the huge retreat from what should be a normative obligation not simply to
‘avoid’ negative practices but indeed –particularly in this global financial
and environmental and security moment—to actually promote rights.
According to this study, “the flaws in Ruggie’s framework
– particularly his reduction of corporate obligations to a ‘responsibility to
respect’ – could threaten the realization of fundamental rights (particularly
in the developing world) and imperil the development of a more adequate
framework for the protection of fundamental rights in the longer term.
Accepting Ruggie’s minimalist framework as it stands would mean reducing widely
our expectations of business and the very possibility of transforming our world
from the current status quo of vast differentials in well-being into one that
offers the possibility of realizing.”
This effort has enormous implications because it
can form part of a different consensus that will look not simply at individual
corporations, but can go on to examine the nature of corporations so that they
are not simply regarded as entities focused upon the self-interested
maximization of profit but that they are structures where shareholder are
morally and perhaps legally compelled to insure that corporate activities
benefit the environment, societies and individuals with whom they interact.
Action Point: Influencing the debate on
the Ruggie report to take place in the UN. Our strategy would call for
demanding that the Human Rights Council rapporteur’s implementation mandate be
widened to include an investigation into corporate obligations to protect and fulfill
as well and to develop guiding principles for the determination of the exact
scope and nature of corporate obligations in this regard.
THREE—BRING
BACK THE SUPREMACY OF THE RULE OF (JUST) LAW
We
have made an argument for meaningful legally-binding justice system to govern
human and corporate behavior. The
problem with legal systems however is that that powerful nations still face the
temptation of interpreting international law and norms in such a way that it
suits their interests, and setting them aside when they don’t, and maybe the
same is true at the national level. Undermining at one level however undermines
all the others. The point is we can’t
throw out the baby of rule of law with the bathwater massive rule of law
violations. Further, when the law is
wielded only against the powerless, it ceases to be a safeguard against
injustice and becomes an instrument of oppression.
Here we can also glance back at the past following
the intellectual trail indicated by the great socialist historian E.P.
Thompson. Thompson socialist humanisms
was reflected in a lecture at Warwick University where he reiterated that
capitalist society offers a thoroughly inhuman form of political community and
that this was mirrored rather than overcome in actually existing `socialist'
states. Thompson looked to the eighteenth century for images of human community
prior to its disintegration into modernity and a distorted rule of law regime.
Thompson visualized the moral community of
eighteenth century plebeian movements who fought to uphold traditional rights against
modern laws of private property. In what
became a famous assertion, particularly as it came from a socialist
perspective, Thompson defended the ideality of the rule of law as an
unqualified human good and its necessity as an inhibition on power. History, he argued, indicated that where the
law did not serve humanity, people
struggled to have the unjust law replaced by the just rule of law. Thompson
linked the idea of moral community to the upholding of traditional use rights
against modern laws of private property.
Today, the struggle for awareness and practice of genuinely
moral rule of law could hardly be more relevant. But some, perhaps correctly, are coming to the
conclusion that the world has ceased to care. One columnist termed the question “Is it
Legal” as the ‘dumb question of the 21st century.
Are we living in a post-legal era and society?
Was the Libyan war legal—did resolution 1973 really authorize war? Are drone attacks and kill lists legitimate? Was the killing of Bin Laden legal? When, if ever, torture, kidnapping and
assassination nationally and internationally legal? Is it true the UNSC ostensibly legalizes such
actions? Are financial elites protected
and given a right to carry out legalized corruption filthy enrichment, while
millions are unemployed? These are questions not affirmations. And those who pose them are neither dumb nor
naïve nor extremists. Writing for The New York Times, a former President
of the United States said “our government's counterterrorism polices are now
clearly violating at least 10 of the declarations 30 articles, including the
prohibition against 'cruel , inhuman or degrading treatment or punishment'.”
One
would think that, at the very least, a debate is called for. But that is
precisely what is missing, and why it is all the more worrisome. The is it legal, let alone is it right
questions, provoke rolled over eyes. So
as a cause or consequence few are asking. Are the answers irrelevant? If 20th century political behaviour
does not correspond with the law, can we pick up the historic struggle to change
the behavior instead of changing the law to accommodate malevolent practices?
At a time when popular
revolutions and rebellions are sweeping the globe, countries of the South, and
Africa in particular, need to act and seen to be acting to strengthen basic
rules of law and principles of justice enumerated in the Universal Declaration
of Human Rights and international law.
Martin Luther King used to
say that ‘Every step toward the goal of justice requires sacrifice, suffering
and struggle’. Legal justice, economic
justice, climate justice will indeed require not simply sacrifice, suffering
and struggle but also a Strategy to transform the illegality order.
The global wealth misdistribution crisis, that attempts to privatize the resources
that belong to all the planet, the global political ambitions and doings designs
of powerful countries and the environmental nightmare dawning upon us all requires
both new and old legal instrument: instruments
of law to fill in or better yet transform the democratic governance. Herein
lies a key global paradox that takes the form of a national and social dilemmas
demanding democratic determinations to turn unacceptable global paradoxes into
global democratic governance.
This is crucial for the
nations of the Global South. As Mahmood
Mandani has argued, the emerging global regime now seeks to ‘ bifurcates the
international system between sovereign states whose citizens have political
rights, and de facto trusteeship territories whose populations are seen as
wards in need of external protection’.
The responsibility to protect seems to have become the right of bankers
and NATO to punish.
Action Point—a discussion
on the Rule of Law is not taking place at the United Nations. It is critical for citizens and governments
to push back on the NATOisation of
governance and law including its own
interventionist rule of law interpretation –humanitarian intervention/right to
protection--which it wishes codified in law and practice. This is critical for the UN itself and the
ideal it enshrines for peaceful and democratized global governance.
CONCLUSION: THE EARTH IS TOO BIG TO FAIL
On one side, there are powerful
corporate forces and political/military actors; on the other, societies and
people who cannot be asked to simply be resilient and get on with survival or
wait for the external military savior.
In the middle lays two other sets of forces: national governments and
the United Nations. Our strategy must
visualize a democratic convergence of people, principally poor and women, with
governments, principally of the poor countries, and the United Nations to meet
the 21st century challenge.
If we are to move together
globally, then a new national social compact are required between governments
and people. Only higher intensity
democracies can close the global democratic governance gaps. We in the South have our own epistemologies
and historical capacity to think on our own two feet and develop our own
theoretical and political paradigms, where the needs of the markets, and
market-oriented States in the North and South take second place to the needs of
communities.
Universities and research/action centers such as
Accord here have a particular responsibility.
During his recent visit to South Africa, Professor De Sousa Santos
joined prominent national academics in stating the disciplines in the
university must be humanised by bringing in African epistemologies:
“Universities need to expand the knowledge systems that they consider to be
valid in the curriculum and that are taught to their students. Up until now the universities relied more on
Western modern knowledge, usually scientific knowledge.” He said that the
Western systems are indeed valid. “However, if I want go to the moon, I need
scientific knowledge, but, if I want to defend the biodiversity of Africa, I
need local knowledge systems.”
In contrast to an exhausted North Atlantic order,
the Global South, in its immense diversity, presents itself today as a wide
field of economic, social, cultural, and political innovation. Our task is to open up more spaces for mutual
recognition, intercultural understanding, political convergence, respect for identities
and celebration of diversity.
The time is now—the financial collapse and its
social repercussions have translated into unusual levels of awareness and even
rebellion in countries of the North. The
question of wealth and power distribution and concentration are squarely on the
agenda. People are furious how the very
wealthy, were able to benefit from a government insurance policy called
"too big to fail."
Never before in history have the question of wealth
and power distribution and concentration been so squarely on the agenda. People are furious how the very wealthy, were
able to benefit from a government insurance policy called "too big to
fail" –shamefully, banks and
investment firms made ridiculously risky and illicit (but not technical)
transactions, with rich rewards, and when the system inevitably crashes, they
can run to the nanny state for a taxpayer bailout and a very visible handout,
Milton Friedman notwithstanding.
If law cannot comfort the afflicted, then it should
at least afflict the comfortable. What
we’ve witnessed is the evolution of a law that protects the comfortable and
their comforts, which is to say their power, against the powerless. We are talking therefore of bringing justice
back in, so as to reflect the feeling, once summed up in a mural during the
Uruguayan military dictatorship: “they took away justice and they left us the
law….”
Paradigm construction is a
historical process. As the good Dr. Johnson used to say, "Men more frequently require to be reminded than informed." And
women, he could have added, will always be around to remind men what is it they
really need to be informed about.
We need to be reminded of
the faith of a universal human being named Steve Biko who once sad “A man without a positive history is like a car without an engine” Biko said
then and says today that the new paradigm has always been within us. It will not
disappear on account of the imbalance of power, between North and South,
between people and corporate power, between humanity and ecology.
Our History, the History of the South is Positive, lets turn
this engine on and step on the accelerator in this historical quest for social
justice, and/through a new ecological
compact with Nature.
But whoso looketh into the
perfect law of liberty, and continueth therein, he being not a forgetful hearer, but a doer of the
work, this man shall be blessed in his deed.
James 1:25
Four
years ago today, President George W. Bush signed into law the biggest corporate
rescue in American history. Even as U.S. unemployment has remained above 8 percent
for 43 months, the country’s biggest banks are making almost as much as they
ever have.The combined $63 billion in profit reported by the six largest U.S.
lenders over the four quarters through June is more than they earned in any
calendar year since the peak in 2006.Bank of America Corp. made
more in the 12-month period than Walt Disney Co. and McDonald’s Corp. combined.
Citigroup Inc. (C),
which like Bank of America took $45 billion in taxpayer funds from the Troubled
Asset Relief Program, earned more than Caterpillar Inc. (CAT) and
Boeing Co. JPMorgan Chase &
Co. (JPM), the largest U.S. bank by assets, had profits of
more than $17 billion even after reporting a $5.8 billion trading loss. No Joy on Wall Street as Biggest Banks Earn $63 Billion,By Max Abelson - Oct
3, 2012, http://www.bloomberg.com/news/2012-10-03/no-joy-on-wall-street-as-biggest-banks-earn-63-billion.html
David Bilchitz, The Ruggie Framework: An Adequate
Rubric for Corporate Human Rights Obligations?
Sur, International Journal on
Human Rights,
In his recent book titled With Liberty and Justice for Some: How the Law is Used to Destroy
Equality and Protect the Powerful, Glen Grenwald documented a two-tier
system of justice in the US where political and financial elites are vested with virtually absolute immunity from
the rule of law even when they are caught committing egregious crimes, while
ordinary Americans are subjected to the world’s largest and one of its harshest
and most merciless penal states even for trivial offenses. As a result, law has
been completely perverted from what it was intended to be – the guarantor of an
equal playing field which would legitimize outcome inequalities – into its
precise antithesis: a weapon used by the most powerful to protect their
ill-gotten gains, strengthen their unearned prerogatives, and ensure
ever-expanding opportunity inequality… The law itself wields tremendous power.
The legal system’s reach is unparalleled: it can deprive a person of property,
liberty, even life. It may compel people to transfer their material goods to others,
block them from engaging in planned actions, destroy their reputations, consign
them to cages, or even inject lethal chemicals into their veins. Unequal
application of the law is thus not merely unjust in theory but devastating in
practice.. When the law is wielded only against the powerless, it ceases to be
a safeguard against injustice and becomes the primary tool of oppression.”
